HomeMy WebLinkAbout20191322.tiffBOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/Regular or Consent Hearing Agenda REQUEST
RE: BOCC Agenda Item - Approve Road Maintenance Agreement for:
Colorado Interstate Gas Company, LLC, (CIG), a subsidiary of Kinder Morgan, Inc. — LAP19-0002
DEPARTMENT: Public Works DATE: March 15, 2019
PERSON REQUESTING: Tisa Juanicorena
Brief description of the issue:
The Department of Public Works received a request from the applicant, Colorado Interstate Gas Company, LLC,
(CIG), a subsidiary of Kinder Morgan, Inc., requesting that the Board of County Commissioners consider
approving the Road Maintenance Agreement for the pipeline (LAP19-0002). No collateral is required with this
agreement.
Weld County Public Works, Planning Services and the County Attorney's Office have reviewed the
above -mentioned signed original document and observed the following:
• All Public Works related items, of the "Road Maintenance Agreement According To Policy", are found to
be acceptable.
• This Agreement complies with the terms of the Location Assessment for a Pipeline (LAP19-0002), as
approved by the Director of Planning Services.
What options exist for the Board?
1. Have this BOCC Hearing item be placed on the next available agenda as part of the Consent Agenda.
2. Have this BOCC Hearing item be placed on the next available agenda as part of the Regular Agenda.
Recommendation:
Option 1. The Departments of Public Works, Planning Services and the County Attorney's Office are
recommending approval of the Improvements & Road Maintenance Agreement According To Policy Regarding
collateral For Improvements for LAP 19-0002, and that this item be placed on the next regularly scheduled BOCC
I learing, as part of the Consent Agenda.
Sean P. Conway
Mike Freeman, Pro-Tem
Scott K. James
Barbara Kirkmeyer, Chair
Steve Moreno
4.-3.- /9
A rove •
Schedule as Regular
Recommendation BOCC Hearing Item Other/Comments;
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C&C1(431(retd)
2019-1322
ROAD MAINTENANCE AGREEMENT ACCORDING TO
REQUIREMENTS DURING THE CONSTRUCTION PERIOD
Colorado Interstate Gas Company, LLC, (CIG), a subsidi. of Kinder Morgan, Inc., — LAP19-0002
THIS AGREEMENT is made this ' .. day of ' , 2011, by and between Colorado
Interstate Gas Company, L.L.C. (CIG) a subsidiary of Kinder Mgan, Inc., a corporation organized under the
laws of the State of Delaware, whose address is 2 N. Nevada Avenue, 740C, Colorado Springs, CO 80903,
hereinafter referred to as "Facility Owner," authorized to do business in the State of Colorado, and the County
of Weld, a body corporate and politic of the State of Colorado, by and through its Board of County
Commissioners, whose address is 1150 "O" Street, Greeley, Colorado 80631 hereinafter referred to as
"County."
WITNESSETH:
WHEREAS, Facility Owner is the owner of the following described easement property in the County
of Weld, Colorado:
Being part of the SE1/4 /4 of Section 12, Township 2 North,
Range 65 West of the 6th F.M., Weld County, Colorado
hereinafter referred to as "the Property," and
WHEREAS, Facility Owner has applied for and has received Administrative approval, by the Director
of Planning Services, of LAP19-0002, commonly known as the Kiowa Lateral Project, and
WHEREAS, the Facility Owner facility will generate additional vehicles and heavy traffic directly
associated with LAP19-0002, for an extended period of time; and
WHEREAS, the County, and Facility Owner are desirous of agreeing to terms involving regulation
of haul routes, traffic control, and road wear arising from such additional traffic.
NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the promises and covenants
contained herein, the parties hereto promise, covenant and agree as follows:
Part I: SITE SPECIFIC PROVISIONS
A. Reserved
B. Haul/Travel Routes: Haul Route Roads are considered that length of roadway within 1/2 mile of
each access location of the pipeline. Applicant has provided the following Access/Haul Route descriptions:
Access Route 1
Hudson Rail Yard —* County Road 47 —> Highway 52 —* Highway 85 —+ County Road 16 —, Ft.
Lupton Contractor Storage
Access Route 2
County Road 16 —> Highway 85 —> County Road 22 —* County Road 49 Access on County
Road 22, East of County Road 49
Access Route 3
County Road 16 —> Highway 85 —> County Road 22 --> County Road 49 —> North on County Road
49 —> Access Below County Road 24.5 on West Side of County Road 49
Colorado Interstate Gas Company, L.L.C., (CIG), a subsidiary of Kinder Morgan, Inc., — LAP19-0002 - RMCA
Page 1 of 6
Access Route 4
County Road 16 —> Highway 85 —* County Road 22 —, County Road 49 —> County Road 18 —>
County Road 51 —> North into Pioneer Holdco Properties
Access Route 5
County Road 16 -* Highway 85 — County Road 22 —+ County Road 49 -* County Road 18 —>
County Road 55 —* North into Waste Management Properties
Access Route 6
County Road 16 —> Highway 85 —> County Road 22 — County Road 49 —> County Road 18 —>
County Road 59 —i Guttersen Ranch Access Points
Access Route 7
County Road 16 —* Highway 85 —> County Road 22 — County Road 49 —, Interstate 76 —> Exit
39 —> North Market Street -+ County Road 398 -* Rocky Mountain Midstream's Plant and
Guttersen Ranch Access Further North
C. Maintenance Requirements:
1.0 Off -Site Dust Control/Abatement: The Facility Owner is required to provide dust abatement along
affected gravel Haul Route roads within 1/2 mile of each access location of the pipeline, as determined by the
County. County will determine the proportionate share of dust control to be paid by Facility Owner. The
amount and extent of dust control measures will be determined by site -specific conditions at the time, as
determined exclusively by County personnel. The County reserves the right to install traffic counters on the
driveway(s) of the Facility Owner's facility. The County will have sole responsibility for determination of the
percentage of haul route traffic on all affected roads.
2.0 Obligation to Maintain Current and Future Haul Routes: Facility Owner will be financially responsible
for the excavation, repair, and patching of any damage on current or future haul route roads, which in the sole
opinion of County has been created by vehicle traffic to and from the Property. Should Facility Owner's site
activities or vehicle circulation patterns change in the future so that County approves an alternate haul route,
and all or a significant portion of Facility Owner's sourced traffic no longer utilizes the above -described haul
route and instead utilizes other portions of County roads, Facility Owner shall cooperate with County in
maintenance of said roads which are included within the new haul route. The type and method of repair will
be determined by the County Engineer or his representative. Repairs shall commence within 48 hours of
notification by the County for any roadway damage that exposes the driving public to adverse or unsafe driving
conditions. All other repairs shall commence within thirty (30) days of receipt of Weld County's written notice.
2.1 Need for Immediate Repairs: In the event of damage to an Approved Haul Route by Project traffic
that causes an immediate threat to public health and safety or renders the road impassible
("Significant Damage"), County shall, after inspection, notify Facility Owner of such Significant
Damage. Facility Owner shall identify the repair required and shall consult with County on the
extent, type, timing, materials and quality of repair (i.e. temporary versus permanent) within
twenty-four (24) hours after receipt of such notice and shall commence such repair within 48 hours
after receipt of such notice. If Facility Owner identifies Significant Damage prior to receiving
notice thereof from County, Facility Owner may commence repair of such Significant Damage
and shall concurrently notify County of the extent, type, timing, materials and quality of repair
(i.e. temporary versus permanent).
2.2 In County's sole discretion, County may undertake the repairs and/or improvements. Facility
Owner's payment for its Proportionate Share of the road repairs/improvements will be calculated
as described in this Agreement.
3.0 Proportionate Share of Road Maintenance Responsibilities:
3.1 Facility Owner shall pay its Proportionate Share of costs of dust control/abatement, paving,
repairs, or maintenance of any particular Haul Route Road. Facility Owner's Proportionate Share
Colorado Interstate Gas Company, L.L.C., (CIG), a subsidiary of Kinder Morgan, Inc., — LAP19-0002 - RMCA
Page 2 of 6
shall be based upon the percentage of traffic on the road that is attributable to Facility Owner's
facility. County personnel will determine the percentage based on then current Equivalent Single
Axle Load (ESAL) Counts. Facility Owner shall not be responsible for traffic that is not sourced
from the Facility Owner's facility.
3.2 The County shall notify Facility Owner of County's preliminary determination and assessment of
Facility Owner's proportionate share of costs. Prior to County's final determination and
assessment, County shall provide Facility Owner with a reasonable opportunity to review,
comment upon and supplement County's data, collection methodology, and determinations. The
County shall review and consider Facility Owner's input prior to making a final determination and
assessment. The County shall have sole responsibility for determination of Facility Owner's
proportionate share of costs.
Part II: General Provisions
A. General Requirements:
1.0 Permits. Facility Owner must still apply for and abide by the terms of any necessary right-of-way
permits, grading permits, and building permits. No work may occur in the County's right-of-way without a
County -issued right-of-way permit and access permit.
2.0 Release of Liability. Facility Owner shall indemnify and hold harmless the County from any and all
liability loss and damage County may suffer as a result of all suits, actions or claims of every nature and
description caused by, arising from, or on account of said design and construction of the pipeline, and pay any
and all judgments rendered against the County on account of any such suit, action or claim, together with all
reasonable expenses and attorney fees incurred by County in defending such suit, action or claim except for
the liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its
employees while acting within the scope of their employment.
3.0 Liability for Damage to Road. Facility Owner shall be financially responsible for any and all damage
caused to any Weld County Road as a result of the installation, use, or maintenance of the pipeline through the
County's rights -of -way, without regard to the negligence, or lack thereof, of Facility Owner or its agents. This
provision shall survive Termination of this Agreement pursuant to Section B.2.0, below, and shall be of no
further force and effect ten years after mutual execution of this Agreement.
B. Violations of Agreement and Remedies
EI
2 1.0 Violation of Terms of Agreement: If in County's reasonable opinion, Facility Owner has violated any of
• the terms of this Agreement, County shall so notify Facility Owner and shall state with specificity the facts
8- and circumstances which County believes constitute the violation. Facility Owner shall have thirty (30) days
a within which to either cure the violation or demonstrate compliance. Thereafter, County may seek any remedy
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described in this Agreement or otherwise provided by law.
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% 2.0 Termination of Agreement: Termination Event: This Agreement shall terminate upon the earliest of
401 the following events:
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Owner's complete cessation of all activities permitted by the LAP. A partial cessation of activities
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I' shall not constitute a Termination of this Agreement, nor shall County's issuance of a partial
dN iol-
-& release constitute a Termination. Unless informed in writing by the Facility Owner of cessation of
....,_=activities, and verified by the County, cessation shall be presumed if the County determines that
v; R- the LAP has been inactive for three (3) years.
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co�Y Colorado Interstate Gas Company, L.L.C., (CIG), a subsidiary of Kinder Morgan, Inc., — LAP19-0002 - RMCA
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2.2 Execution of Replacement Agreement: This Agreement shall terminate following County's
execution of a new Improvements Agreement with a new Facility Owner or Operator who has
purchased the Property or has assumed the operation of the business permitted by the LAP, and
intends to make use of the rights and privileges available to it through the then existing LAP.
2.3 Rescission of LAP: This Agreement shall terminate following County's Rescission of Facility
Owner's LAP, except that the Facility Owner shall only be released from this Agreement after the
successful completion of all improvements required under this Agreement.
2.4 Completion of Construction: This Agreement shall terminate following Facility Owner's
completion of construction of the facilities authorized by the underlying LAP. Facility Owner shall
notify the County of completion.
3.0 Rescission of LAP: Facility Owner acknowledges that failure to comply with the material terms of this
Agreement constitutes cause to revoke the LAP, and County may exercise this option in its sole reasonable
discretion by proceeding with Rescission under Section 23-2-1180 of the Weld County Code.
4.0 Court action: Upon notice of violation and failure to cure within the time permitted by this Agreement,
County may seek relief in law or equity by filing an action in the Weld District Court.
C. Miscellaneous Provisions.
1.0 Definitions:
1.1 All references in this Agreement to "County Engineer" shall refer to the any individual or
individuals appointed by the County Engineer to act on his/her behalf.
1.2 All references to "Haul Routes" include identified travel routes for subdivisions; references to
"haul vehicles" include subdivision vehicular traffic, as applicable.
1.3 All references to "Facility Owner" shall include any individual or entity, including an "Operator",
who is acts on behalf of the Facility Owner regarding this Agreement.
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2.0 Successors and Assigns: This Agreement may not be delegated, transferred or assigned in whole or in
part by Facility Owner without the express written consent of County and the written agreement of the party
to whom the obligations under this Agreement are assigned. Facility Owner's release of its obligations shall
be accomplished by County's execution of a new Improvements Agreement with the successor owner of the
property. Consent to a delegation or an assignment will not be unreasonably withheld or delayed by County.
County's rights and obligations under this Agreement shall automatically be delegated, transferred or assigned
to any municipality which, by and through annexation proceedings, has assumed jurisdiction and maintenance
responsibility over the roads affected by this Agreement. All of the terms and conditions set forth in this
Agreement shall be binding upon the heirs, executors, personal representatives, successors and assigns of
Facility Owner, and upon recording by the County, shall be deemed a covenant running with the land herein
described.
3.0 Governmental Immunity: No term or condition of this agreement shall be construed or interpreted as
a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the
Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended.
4.0 No Third Party Beneficiary Enforcement: It is expressly understood and agreed that the enforcement
of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be
Colorado Interstate Gas Company, L.L.C., (CIG), a subsidiary of Kinder Morgan, Inc., — LAP19-0002 - RMCA
Page 4 of 6
strictly reserved to the undersigned parties, and nothing contained in this Agreement shall give or allow any
claim or right of action whatsoever by any other person or entity not included in this Agreement. It is the
express intention of the undersigned parties that any person or entity, other than the undersigned parties,
receiving services or benefits under this Agreement shall be an incidental beneficiary only.
5.0 Entire Agreement/Modifications: This Agreement including the Exhibits attached hereto and
incorporated herein, contains the entire agreement between the parties with respect to the subject matter
contained in this Agreement. This instrument supersedes all prior negotiations, representations, and
understandings or agreements with respect to the subject matter contained in this Agreement. This Agreement
may be changed or supplemented only by a written instrument signed by both parties.
6.0 Board of County Commissioners of Weld County Approval: This Agreement shall not be valid until
it has been approved by the Board of County Commissioners of Weld County, Colorado or its designee.
7.0 Choice of Law/Jurisdiction: Colorado law, and rules and regulations established pursuant thereto, shall
be applied in the interpretation, execution, and enforcement of this Agreement. Any provision included or
incorporated herein by reference which conflicts with said laws, rules and/or regulations shall be null and void.
In the event of a legal dispute between the parties, Facility Owner agrees that the Weld County District Court
shall have exclusive jurisdiction to resolve said dispute.
8.0 Severability: If any term or condition of this Agreement shall be held to be invalid, illegal, or
unenforceable by a court of competent jurisdiction, this Agreement shall be construed and enforced without
such provision, to the extent that this Agreement is then capable of execution within the original intent of the
parties.
9.0 Attorneys Fees/Legal Costs: In the event of a dispute between County and Contract Professional,
concerning this Agreement, the parties agree that each party shall be responsible for the payment of attorney
fees and/or legal costs incurred by or on its own behalf.
10.0 Binding Arbitration Prohibited: Weld County does not agree to binding arbitration by any extra-
judicial body or person. Any provision to the contrary in this Agreement or incorporated herein by reference
shall be null and void.
11.0 Authority to Sign: Each person signing this Agreement, and associated Exhibits, represents and
warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each
party represents and warrants to'the other that the execution and delivery of the Agreement and the performance
of such party's obligations hereunder have been duly authorized and that the Agreement is a valid and legal
agreement binding on such party and enforceable in accordance with its terms. If requested by the County,
Facility Owner shall provide the County with proof of Facility Owner's authority to enter into this Agreement
within five (5) days of receiving such request.
4478883 Pages: 5 of 6
04/04/2019 11:25 AM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County, CO
uIII MINIM AMA IOW 11111
Colorado Interstate Gas Company, L.L.C., (CIG), a subsidiary of Kinder Morgan, Inc., — LAP19-0002 - RMCA
Page 5 of 6
Facility O - olorado Interstate Gas Company, L.L.C., (CIG), a subsidiary of Kinder Morgan, Inc.
/ IC,
By: �! � /� _�! Date: 3//3f 9
Name: C_'C,��.�
Title:
STATE OF COLORADO
County of Weld-
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SS.
The foregoing instrument was acknowledged before me this Aay of 1(C r 1
2019, by c ((n
WI
J
DENISE M TONEY
NOARY PUBLIC
STATE TOF COLORAD,p
NOTARY ID # 20034035390
MY OOMMISSION EXPIRES OCTOBER 17, 2019
Notary Public
WELD COUNTY:
ATTEST. ' BOARD OF COUNTY COMMISSIONERS
Weld • ou ty Clerk to the B . . rd WFLD COUNTY, C$1iLORADO
BY:
Deputy Cleto e Bo. �. / , Barbara Kirkmey r, Chair
4478883 Pages: 6 of 6
04/04/2019 11:25 AM R Fee:$0.00
Carly Koppes, Clerk and Recorder, Weld County, CO
VIII I AZ M I+ 'kl 110N4i' 1M IW NIU I "III
APR 03 2019
Colorado Interstate Gas Company, L.L.C., (CIG), a subsidiary of Kinder Morgan, Inc., — LAP19-0002 - RMCA
Page 6 of 6
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